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Reagan National Advertising of Austin, Inc. v. City of Cedar Park

United States District Court, W.D. Texas, Austin Division

August 15, 2019

REAGAN NATIONAL ADVERTISING OF AUSTIN, INC., Plaintiff,
v.
CITY OF CEDAR PARK, Defendant.

          ORDER

          SAM SPARKS, SENIOR UNITED STATES DISTRICT JUDGE.

         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant City of Cedar Park (the City)'s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Reconsideration [#50], Plaintiff Reagan National Advertising of Austin, Inc. (Reagan)'s Response [#53] in opposition, the City's Reply [#56] in support, and the City's Brief [#46-1] in support.[1] Having reviewed the documents, the governing law, and the case file as a whole, the Court now enters the following opinion and order.

         Background

         This is a First Amendment case. Reagan is a commercial billboard company in the business of outdoor advertising. Am. Compl. [#18] at 2. On March 8, 2017, Reagan submitted five sign permit applications to the City. Am. Mot. Summ. J. [#24-2] (Sign Permit Applications). Three of these applications requested permission to install digital sign faces on existing outdoor signs (the Digital Conversion Applications). Id. at 1, 2-16. The other two applications sought permits for the construction of two new signs (the New Sign Applications). Id. at 1, 17-32.

         To receive approval, permit applications must demonstrate proposed signs meet the requirements of the City's Sign Code.[2] These requirements are contained in two articles. The first article-Article 13.01-is entitled "On-Premises Sign Standards and Permits." Am. Mot. Summ. J. [#24-5] Ex. 5 (Sign Code) at 1. The second article-Article 13.03-is entitled "Off-Premises Sign Standards and Permits." Id. at 25.

         Both Article 13.01 and Article 13.03 contain provisions which rely upon a distinction between on-premises and off-premises signs. An "on-premises sign" is defined as a "sign identifying or advertising the business, person, activity, goods, products, or services located on the site where the sign is installed, or that directs persons to a location on that site." Sign Code at 4. By contrast, an "off-premises sign" is defined as a "sign referring to goods, products or services provided at a location other than that which the sign occupies." Id. at 3-4. All five of Reagan's permit applications relate to off-premises signs.

         On March 14, 2017, the City denied Reagan's permit applications. Am. Mot. Summ. J. [#24-4] Ex. 4 (Denial Letters). Among other reasons, the New Sign Applications were denied because they proposed using light-emitting diode (LED) displays in off-premises signs and because they proposed to erect "pylon signs." Id. at 7-10; see also Sign Code § 13.01.007(i)(4) ("Electronically controlled changeable messages signs shall not advertise goods or services not offered on the premises on which the sign is located."); id. § 13.03.006(d) ("No light emitting diode (LED) displays or signs shall be permitted."). The City also denied the Digital Conversion Applications because, like the New Sign Applications, the Digital Conversion Applications proposed installing LED displays in off-premises signs. Denial Letters at 1-6; Sign Code §§ 13.01.007(i)(4), 13.03.006(d); see also Id. §§ 13.01.016(a), 13.03.007(a) ("[N]o change or alteration shall be made [to existing signs] that would increase the degree of nonconformity [with the Sign Code].").

         After the City denied Reagan's permit applications, Reagan filed this action in state court arguing that the Sign Code's differing treatment of on-premises and off-premises signs constitutes content discrimination and that this content-based distinction cannot survive constitutional scrutiny. Notice Removal [#1-1] Ex. 1 (Original Pet.) at 4. The City subsequently moved for summary judgment on Reagan's constitutional claims. See Mot. Summ. J. [#24].

         The Court granted the motion in part and denied the motion in part. Order of May 23, 2019 [#49] at 16-17. As a preliminary matter, the Court concluded Reagan possessed standing to challenge the denial of the Digital Conversion Applications but not the New Sign Applications. Id. at 4-7. The Court then considered the constitutionality of the Sign Code and concluded that although the Sign Code's regulation of commercial speech survived scrutiny under Central Hudson, the Sign Code's content-based regulations of noncommercial speech were subject to strict scrutiny under Reed v. Town of Gilbert. 135 S.Ct. 2218 (2015). Because the City had not demonstrated the Sign Code's content-based regulation of off-premises signs containing noncommercial speech survived strict scrutiny, the Court denied summary judgment on Reagan's claim that denial of the Digital Conversion Applications violated the First Amendment. Order of May 23, 2019 [#49] at 16-17. That claim is currently set for trial in November 2019. Order of Sept. 22, 2017 [#11] at 3.

         The City now moves to dismiss Reagan's claims for lack of jurisdiction. Mot. Dismiss [#50] at 1. In the alternative, the City moves for reconsideration of the Court's prior summary judgment order. Id. This pending motion is ripe for review.

         Analysis

         I. Motion to Dismiss for Lack of Jurisdiction

         Article III of the Constitution limits the jurisdiction of federal courts to cases and controversies. U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 395 (1980). In order to meet this case-or-controversy requirement, plaintiffs must establish they have standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997). Plaintiffs have standing to sue if they have suffered an injury in fact fairly traceable to the challenged action of the defendant and "likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 750-52 (1984); see also Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) ("[A] plaintiff must demonstrate standing separately for each form of relief sought."). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Def. 's of Wildlife, 504 U.S. 555, 561 (1992).

         The City argues Reagan lacks standing to bring its remaining First Amendment claims- which challenge the denial of Reagan's Digital Conversion Applications-because (1) Reagan has not suffered any injury; (2) any injury suffered by Reagan is not traceable to the City's denial of the Digital Conversion Applications; and (3) the denial of the Digital Conversion Applications is not redressable because those applications will be denied on content-neutral grounds even ...


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